On Friday, the Solicitor General indicated that the government will be filing a petition for certiorari to the Supreme Court in Electric Power Supply Association v. FERC. The government’s cert petition will ask the Supreme Court to review a May 23, 2014, decision from a divided panel of the D.C. Circuit that invalidated FERC’s Order 745.

Order 745 directs Regional Transmission Organizations (RTOs) and Independent System Operators (ISOs) to establish rules that compensate demand response resources at the wholesale market price—the same rate that electric power suppliers receive for selling electricity. A group of organizations affiliated with generators of electricity sued FERC, alleging that Order 745 had overstepped the agency’s authority. A majority of the D.C. Circuit panel (Brown, Silberman) agreed, holding that Order 745 exceeds FERC’s jurisdiction over wholesale electricity markets under the Federal Power Act, 16 U.S.C. § 824. The panel majority reasoned that, because demand response involves decisions by end users regarding their energy use, it is inherently “part of the retail market.” Judge Edwards dissented.

Demand response and other smart grid technologies raise challenging legal questions, because they are upending assumptions about how the grid and electric power markets work. Just as distributed generation is integrating generation resources at places in the electric power grid that traditionally involved only distribution to end users, demand response resources are being aggregated and coordinated in ways that allow them to compete effectively in wholesale markets.

Characterizing demand response as merely a decision not to purchase electricity in the retail market, as the panel majority did, fails to appreciate the important functions that demand response resources play in contemporary electric power markets. Demand response, for example, can provide effective frequency regulation that helps to stabilize the grid, and frequency regulation is an ancillary service procured through wholesale power markets.

FERC’s jurisdiction is determined by statute, and the agency cannot rewrite its authority merely because times have changed. But courts need to understand the context in which FERC is operating and should not apply outdated and rigid assumptions about how electric power markets should operate. Hopefully the Supreme Court will grant certiorari in this case and give FERC the flexibility it needs to apply its existing authority in the context of changing technologies and markets.

On December 5, the D.C. Circuit (Rogers, Wilkins, Williams) issued a decision in Louisiana Public Service Commission v. FERC, the latest in a string of decisions arising out of cost allocations amongst . Entergy Corporation, through six operating subsidiaries, sells electricity in Arkansas, Louisiana, Mississippi, and Texas. The six subsidiaries own their generation and transmission facilities individually, but operate jointly as a single system. Because of this joint operation, the six subsidiaries share production costs pursuant to a FERC-approved System Agreement. In 1995, the Louisiana Public Service Commission complained that the allocation of capacity costs under the System Agreement was unjust and unreasonable, in violation of the Federal Power Act. After much litigation, remands, and rehearings, FERC eventually agreed with the Louisiana Public Service Commission that the costs were unjust and unreasonable but declined to order refunds of the misallocated costs. Unlike excessive rates, FERC reasoned, misallocated costs involve a zero-sum game where the system overall has not over-recovered. The D.C. Circuit granted Louisiana’s petition for review, holding that FERC had failed to justify its decision not to order a refund of the misallocated costs. The court noted that FERC does not follow a strict policy against refunds of misallocated costs, and so had to explain why the particular circumstances in this case did not warrant a refund.

On December 2, the Tenth Circuit (Kelly, Bacharach, Phillips) issued a decision in Kane County v. United States, the latest in a series of cases involving challenges to federal title under Revised Statute 2477. This case is part of an ongoing dispute between Kane County, in southern Utah, and the federal government, in which the County has sought to establish rights-of-way in and across federal lands to allow off-road vehicle use in areas that would otherwise be subject to closure or restrictions under federal law. Kane County filed this action in 2008, seeking to quiet title to portions of 15 roads under Section 8 of the Mining Act, commonly referred to as Revised Statute 2477, or “R.S. 2477.” R.S. 2477 was repealed by the Federal Land Policy and Management Act in 1976, except as to “valid existing” R.S. 2477 rights. The government moved to dismiss the County’s claims on the basis that a jurisdictional trigger in the Quiet Title Act – disputed title – was lacking. The district court disagreed. On appeal, the Tenth Circuit reversed, establishing, for the first time, that only unambiguous and consistent assertions of title by the federal government are sufficient to create a title dispute. In other words, “actions of the United States that merely produce some ambiguity regarding a plaintiff’s title are insufficient to constitute ‘disputed title’” and prevent the court from exercising jurisdiction. With respect to the individual roads at issue in the case, the court held that the district court erred in asserting jurisdiction over a handful, but affirmed jurisdiction over several others. The court also addressed a statute of limitations argument under the Quiet Title Act for one of the road sections traversing a Wilderness Study Area, holding that federal designation of the WSA was not sufficient to give notice to the county of federal ownership of the roads because it was not an adequate assertion of “exclusive control” by the federal government. Finally, the court reaffirmed its rule regarding the scope of an R.S. 2477 right-of-way: once established, an R.S. 2477 road can be widened in a “reasonable and necessary manner”, but only in light of pre-1976 uses of the road.

Earlier this week I attended the National Summit on Smart Grid and Climate Change, organized by the Association for Demand Response & Smart Grid. The conference addressed ways that smart grid technologies, including demand response and energy efficiency, can be used as climate mitigation and adaptation tools, including as means of complying with EPA’s forthcoming Clean Air Act 111(d) rule for existing power plants (also known as the Clean Power Plan). Takeaways from the conference included:

As increases in distributed generation and renewable energy entail decreased centralized control over power generation, there is a need for a compensating increased centralized control over demand for power (load). Smart grid and demand response technologies help to fill that need, thereby facilitating integration of distributed generation and renewable energy into the grid. In addition, some of the concerns about the unpredictability of distributed resources (both generation and demand response) can be addressed by aggregating and coordinating distributed resources, to operate them as a “virtual power plant.”

The 111(d) rulemaking process is inducing a convergence of energy and environmental regulation. Utility regulators and air regulators are meeting and starting to attempt to coordinate in ways they have never done before. That being said, there is clearly a lot more work to be done in this area.

Demand response measures and smart grid technologies have benefits independent of emissions reduction. EPA’s 111(d) rule will have important impacts on the energy sector, including creating strong incentives for increased utilization of smart grid and demand response technologies. Thus, the 111(d) rule may have significant benefits beyond emissions reduction, especially if EPA, FERC, state energy and air regulators, and the energy sector can work together to create synergies between 111(d) compliance and grid modernization.

Smart grid technologies and distributed generation are causing forward-thinking people and entities in the energy sector to rethink electric power distribution systems. Peter Fox-Penner of the Brattle Group, for example, advocates moving distribution systems toward open access platforms for a variety of grid services. Many speakers expressed interest and excitement about the New York State Public Service Commission’s Reforming the Energy Vision (REV) initiative as an example of a promising forum for such forward thinking.

On December 2, the D.C. Circuit (Garland, Griffith, Williams) issued a decision in Midland Power Co-op. v. FERC. This case arose out of a dispute between Gregory and Beverly Swecker, who own and operate a wind turbine on their Iowa farm, and Midland Power Cooperative, an Iowa electric utility. The Sweckers’ wind turbine is a qualifying facility under § 210 of the Public Utility Regulatory Policies Act of 1978 (“PURPA”), 16 U.S.C. § 824a–3. PURPA requires utilities to purchase power from qualifying facilities at “avoided cost.” When the Sweckers decided that Midland was not paying them a rate that reflected avoided cost, they stopped paying Midland for the power they used. Midland responded by disconnecting the Sweckers, which had the effect of preventing the Sweckers from buying retail power from Midland and stopping Midland’s purchases of power from the Sweckers’ wind turbine. FERC issued an order under PURPA requiring Midland to reconnect with the Sweckers’ turbine, and Midland filed a petition for review. Midland invoked Federal Power Act § 313(b), 16 U.S.C. § 825l(b), which as codified provides that “[a]ny party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the United States court of appeals.” Since PURPA § 210 is codified in the same chapter as the Federal Power Act, Federal Power Act § 313(b) would seem to create jurisdiction. The D.C. Circuit, however, observed that as enacted § 313(b) actually referred to “a proceeding under this Act,” with “this Act” meaning the Federal Power Act, and PURPA § 210 is not part of the Federal Power Act. Accordingly, Midland could not sue under Federal Power Act § 313(b). Nor, the court of appeals held, did FERC’s order create a new rule regarding disconnections of retail service for customers’ nonpayment in a way that might trigger jurisdiction under PURPA § 210(h), 16 U.S.C. § 824a–3(h). Citing its precedent, the D.C. Circuit noted that enforcement of PURPA § 210 is generally vested exclusively in district courts, not courts of appeals.

On December 1, the Ninth Circuit (Canby, Fletcher, Watford) issued a decision in WildEarth Guardians v. McCarthy. WildEarth Guardians, Midwest Environmental Defense Center, and Sierra Club sued EPA under the Clean Air Act's citizen suit provision, 42 U.S.C. § 7604, in an attempt to force EPA to issue revised regulations for ozone under its Prevention of Significant Deterioration (PSD) program, which regulates emissions in areas that are in attainment of the National Ambient Air Quality Standard. Clean Air Act § 166(a) requires EPA to issue regulations implementing the PSD program, initially within two years after 1977 and then, “[i]n the case of pollutants for which national ambient air quality standards are promulgated after August 7, 1977, [EPA] shall promulgate such regulations not more than 2 years after the date of promulgation of such standards.” The plaintiffs’ suit was premised on an interpretation of this sentence that would require EPA to issue new PSD regulations within two years of any revision of a NAAQS—here, EPA’s 2008 revision of the ozone NAAQS. EPA interprets Clean Air Act § 166(a) to require new PSD regulations only for newly regulated pollutants, not NAAQS that merely revise the standard for an already regulated pollutant. The Ninth Circuit, without reaching the question whether EPA’s interpretation is correct, held that Clean Air Act § 166(a) was sufficiently ambiguous that it could not support the existence of a nondiscretionary duty that would form the basis for a citizen suit against EPA. Under Ninth Circuit precedent, a citizen suit alleging EPA has violated a nondiscretionary duty must allege that EPA has violated a “specific, unequivocal command” in the relevant statute.

I hope you enjoyed our November (or has we call it here in Buffalo Snowvember) essays examining the latest IPCC report. Hopefully, they helped you frame some ideas and provided some context for the current discussions in Lima. A big thanks to Environmental Law Profs Blog for hosting the Environmental Law Collaborative yet again. The ELC is an evolving group of environmental law scholars that meets in person every other year to discuss thorny environmental law problems and strategize responses. These essays are only one way in which we seek to disseminate our work and further the discussion. These essays will be appearing in print in ELR early next year, and you can download them in one document on SSRN starting today.

Feel free to direct any comments on this specific project on on the ELC generally my way.

2014 is the centennial of the birth of Edmund Muskie in the old mill town of Rumford, Maine. On November 15, at a conference commemorating what would have been Muskie’s 100th birthday, Harvard Law Professor Richard Lazarus and Leon Billings, Senator Muskie’s former chief of staff, looked back upon and to the future of laws like the Clean Air and Water Acts, both of which were unanimously passed by the Senate through the guidance of Muskie and Billings.

Billings spoke of how what Muskie was able to shepherd through Congress and into law involved concepts still pervasive and taken for granted today—such as private attorneys general, nondegradation, open decision-making, and the public’s right to breathe healthy air and removal of the right to pollute. He described Muskie’s exhaustive efforts to fully vet and document the need for legislation. For example, for the CWA the Senate Committee held 33 days of hearings with 1721 witnesses, 470 statements and 6,400 pages of testimony, followed by 45 sub-or-full-Committee markup sessions and 39 Conference meetings.

Billings then focused on two concepts that he said demonstrate Muskie’s ability over 40 years ago to look to the future. The first, “waters of the Unites States,” grew out of the Senator’s knowledge of the 1899 Refuse Act; he successfully convinced his colleagues that the Act supported a broad view of “waters of the US” to include, for example, wetlands. Since then, the Supreme Court has gone “at least as far as we had expected, and more broadly than we could have hoped”, said Billings. For the second concept, that of climate change, Billings said Section 111(d) was no accident and is not being misinterpreted. Muskie intended there to be a legislative basis for then-unknown or undefined pollution problems like CO2, an approach Billings now calls the “epitome of the precautionary principle.” For that reason, he deliberately included the open-ended phrase “selected air pollution agents And while no one then envisioned CO2 and climate change, Billings said that if Muskie were alive when the Supreme Court ruled in Massachusetts v EPA that CO2 is a pollutant, he would have said, “Why do you think I put that provision in there in the first place?”

Richard Lazarus then spoke of Senator Muskie’s enduring legacy in the courts. The Senator’s views remain an important indicator of the legislative intent underlying many environmental laws, and both Court opinions and oral argument transcripts frequently quote Muskie’s words. Lazarus also demonstrated that while President Nixon did sign the bills authored by Muskie and had the label of being an environmental President, in fact he was largely using the issue as a short-term defensive measure to cut off Muskie’s prospects as a potential 1972 Presidential candidate. Lazarus also discussed the current EPA rulemaking under Section 111, especially referencing the term “best system of emission reduction,” noting that EPA’s June 2014 legal memorandum in support of its rulemaking proposal used Senator Muskie’s own words concerning “system” as encompassing the potential for emission reductions to occur outside the fence, and to include more than just technology-based controls.

During Q&A, both panelists contrasted the partisanship of the past 10-20 years with during Muskie’s era. Billings mentioned how during Muskie’s opening presentation of the Clean Air Act on the Senate floor, the presiding officer was Senator Barry Goldwater, who sent down a note (now lost to history) saying “Ed, that is the finest speech I think I have ever heard on the floor of the U.S. Senate.”

- Jeff Thaler, Visiting Professor of Energy Law and Policy, Maine Law School

Katrina Fischer Kuh, Professor of Law, Associate Dean for Intellectual Life and Hofstra Research Fellow, Maurice A. Deane School of Law

Adaptation planning and implementation at all levels of governance are contingent on societal values, objectives, and risk perceptions (high confidence). Recognition of diverse interests, circumstances, social-cultural contexts, and expectations can benefit decision-making processes. Indigenous, local, and traditional knowledge systems and practices, including indigenous peoples’ holistic view of community and environment, are a major resource for adapting to climate change, but these have not been used consistently in existing adaptation efforts. Integrating such forms of knowledge with existing practices increases the effectiveness of adaptation.

On November 20, the Ninth Circuit (Schroeder, Paez, Berzon) issued a decision in Alliance for the Wild Rockies v. Department of Agriculture. Montana authorities, under a federally approved program, use low altitude helicopter flights, riders on horseback, and off-highway vehicles in the Greater Yellowstone Area to haze bison, directing the bison into Yellowstone National Park and away from cattle to which the bison could spread the disease brucellosis. The area in which the bison hazing occurs is habitat for the endangered Yellowstone grizzly bear. Alliance for the Wild Rockies sued the federal agencies that approved the bison hazing, alleging that the helicopter flights harass grizzlies in the area in violation of the Endangered Species Act (ESA), NEPA, and the National Forest Management Act (NEPA). On appeal from a district court judgment in favor of the defendants, the Ninth Circuit held (a) that the Alliance had Article III standing to pursue its claims against the federal defendants, because the federal defendants approved the bison hazing program even though a state agency operates it; (b) that the Alliance’s claim under Section 7 of the Endangered Species Act was moot because the defendants already had completed a new biological evaluation consultation; (c) that the Alliance complied with the Endangered Species Act’s sixty-day notice requirement for citizen suits by sending a notice of intent to sue, then filing a complaint alleging non-ESA claims, and then amending its complaint to add ESA claims after the sixty-day window had expired; (d) that the Alliance’s claims against the Animal and Plant Health Inspection Service and Fish and Wildlife Service failed because those claims were not part of the Alliance’s sixty-day notice; (e) that the Alliance’s claim under Section 9 of the ESA failed because the Alliance failed to present evidence that bison hazing would cause a “take” of a Yellowstone grizzly bear; and (f) that the Alliance’s claims under NEPA and NFMA failed because it failed to show changes in the bison hazing program that would require a supplemental environmental impact statement.

Most of these conclusions are case-specific and closely tied to the record in this case. The question of whether a plaintiff can bring suit alleging non-ESA claims before the sixty-day window has expired, and then amend its complaint to add ESA claims upon expiration of the sixty-day period, is a purely legal issue that will establish precedent for at least the Ninth Circuit. The court distinguished cases such as Proie v. National Marine Fisheries Service, No. C11-5955BHS, 2012 WL 1536756 (W.D. Wash. May 1, 2012), in which the plaintiff’s initial complaint alleged APA claims based on ESA violations. Here, by contrast, the Alliance’s initial complaint raised NEPA and NFMA claims independent of the ESA.

Inara Scott, Assistant Professor, College of Business, Oregon State University

Talking about climate change gets depressing fast. The latest report by the Intergovernmental Panel on Climate Change (IPCC) doesn’t help. Though the practical reality of the current situation is buried deep in scenarios, options, and complex modeling, the bottom line is that the current rate of emissions will bring global temperature increases in the range of 3.7 to 4.8° C by 2100,[1] a scenario most agree would be “devastating” to human society.[2] A “4°C world” will experience severe drought, species and habitat extinction, and risks worldwide tipping points with unpredictable future outcomes.[3]

Given this dramatic trajectory, why do only 34% of Americans worry “a great deal” about climate change?[4] One problem may be our cognitive hardwiring. As a species, humans aren’t good at making long-term decisions and are particularly apt to choose short-term gains over long-term benefits. Also, studies suggest that activism is likely to be driven in part by feelings of efficacy—i.e., the more hopeless and dire the situation appears, the less likely people will be to get involved in political advocacy.[5] Thus, our attempts to inspire activism by educating people about the enormity of the climate change problem may backfire by making people less likely to become involved in climate activism.

Is an anti-retaliation case brought by an environmental whistleblower an environmental law case? On November 18, the Sixth Circuit (McKeague, Griffin, Polster (by designation)) issued a decision in Vander Boegh v. EnergySolutions, Inc. Vander Boegh worked as a landfill manager at the Department of Energy’s Paducah Gaseous Diffusion Plant, during which time he reported environmental violations. When EnergySolutions took over the waste management services subcontract for the Plant, it did not hire Vander Boegh. Vander Boegh sued EnergySolutions, alleging that it was retaliating against him in violation of the Energy Reorganization Act, 42 U.S.C. § 5851; False Claims Act, 31 U.S.C. § 3730(h)(1); Safe Drinking Water Act, 42 U.S.C. § 300j–9(i); Clean Water Act, 33 U.S.C. § 1367; Toxic Substances Control Act, 15 U.S.C. § 2622; and Solid Waste Disposal Act, 42 U.S.C. § 6971. The Sixth Circuit held that Vander Boegh could not sue under the anti-retaliation provisions of the Energy Reorganization Act or False Claims Act, both of which prohibit retaliation against “any employee,” because a job applicant is not an employee. With respect to Vander Boegh’s claims under the environmental statutes, the court held that their anti-retaliation provisions do not grant jurisdiction to the federal district courts to hear retaliation claims. Instead, claimants must seek administrative review with the Department of Labor, and then may pursue judicial review of the Department’s order if it is adverse.

On November 14, a panel of the Fifth Circuit (King, Dennis, Clement) issued a decision in Louisiana Public Service Commission v. FERC. Entergy Corporation, through six operating subsidiaries, sells electricity in Arkansas, Louisiana, Mississippi, and Texas. The six subsidiaries own their generation and transmission facilities individually, but operate jointly as a single system. Because of this joint operation, the six subsidiaries share production costs pursuant to a FERC-approved System Agreement. Each year, Entergy allocates production costs pursuant to the System Agreement and files those costs for FERC approval in what is known as a Bandwidth Proceeding. The Louisiana Public Service Commission (LPSC) has frequently challenged FERC’s orders in these bandwidth proceedings. This case involves one of those challenges. The Fifth Circuit denied the LPSC’s petition for review of FERC’s orders, holding (1) that some of the LPSC’s arguments objected to the method of allocating production costs and therefore had to be raised in a separate proceeding, not in a challenge to the bandwidth proceeding, which merely implements the approved allocation formula; and (2) that FERC reasonably required Entergy to include casualty loss net accumulated deferred income taxes in its allocated production costs.

We share the Earth with millions of gorgeous species, the current, ephemeral expressions of over 3 billion years of biological evolution. All species are cogs in functioning ecosystems that support all life. All humans require a diversity of species to feed, heal, and inspire us.

With “high confidence,” the IPCC Summary for Policy Makers asserts that “[a] large fraction of both terrestrial and freshwater species faces increased extinction risk under projected climate change during and beyond the 21st century, especially as climate change interacts with other stressors, such as habitat modification, over-exploitation, pollution, and invasive species.”[1] The Summary further notes that “[m]any species will be unable to track suitable climates under mid- and high- range rates of climate change.”[2] That is to say, continued evolution in the face of a most unnatural selection is unlikely for most species, and thus “[t]hose that cannot adapt sufficiently fast will go extinct in part or all of their ranges.”[3]

Temperatures will rise, droughts will exacerbate, storms will intensify, pests will spread, pollinators will go extinct or lose synchronicity with the plants they pollinate, and all the while human populations will be expanding and on the move, exploiting more of the ecosystems upon which all human life depends. Through the alchemy of photosynthesis, terrestrial ecosystems absorb about a quarter of human carbon dioxide (CO2) emissions; deforestation disrupts this vital ecosystem service and currently accounts for about 15-20% of greenhouse gas (GHG) emissions. So, as climate change and human needs degrade natural ecosystems—as plants are felled, burned, or eaten, as tundra melts, as peat bogs desiccate—climate change worsens … further imperiling species and ecosystems.

Many terrestrial, freshwater, and marine species have shifted their geographic ranges, seasonal activities, migration patterns, abundances, and species interactions in response to ongoing climate change (high confidence). … While only a few recent species extinctions have been attributed as yet to climate change (high confidence), natural global climate change at rates slower than current anthropogenic climate change caused significant ecosystem shifts and species extinctions during the past millions of years (high confidence).

These most recent findings of the IPCC confirm something conservation biologists and other scientists have already been observing and writing about for years: climate change means landscape change. As the world warms and sea level rises, ecosystems will both shift and reconfigure. The most recent IPCC report designates this at its highest confidence level, stating that change has already occurred (and will continue to occur) and it will do so in virtually every type of landscape: terrestrial, freshwater, and marine life. As climate change results in changed landscapes, our strategies for how we interact and behave on the land has no choice but to shift as well. In particular, this essay focuses on what this means for land conservation and goals of protecting specific endangered species or ecosystems.

The largest mitigation opportunities with respect to human settlements are in rapidly urbanizing areas where urban form and infrastructure are not locked in, but where there are often limited governance, technical, financial, and institutional capacities. (IPCC AR5 WGIII SPM § 4.2.5.)

The IPCC is comprehensive in its scope and conclusive in its evidence for climate change. Why then has the report failed to be persuasive and, in fact, launched a counter-offensive against the idea of climate change generally? The backlash is a many-headed hydra, but at the local level, its growth is manifest in anti-Agenda 21 screeds increasingly heard against local climate action plans in town halls across the United States. It is easy to write off the climate change backlash as either political posturing or ignorance. That would be a mistake; engagement is necessary. What the IPCC process needs now is not more science to prove climate change exists; rather, it needs an approach to planning for climate change that builds consensus and engages diverse stakeholders at the local level where development decisions are made.

On Wednesday, the Ninth Circuit issued a ruling in Shell Gulf of Mexico, Inc. v. Center for Biological Diversity, holding that Shell could not use the Declaratory Judgment Act and the APA to preemptively curtail twelve environmental groups’ ability to seek judicial review of federal approvals of its oil spill response plans for offshore drilling activities in the Arctic. After years of defending federal decisions authorizing drilling and related activities from lawsuits filed by most of the major national and regional environmental groups, Shell fired first this time – suing the groups in federal district court and requesting a declaratory judgment that the Bureau’s approvals did not violate the Administrative Procedure Act. A successful result would, Shell reasoned, foreclose any future litigation from the defendants, including the Center for Biological Diversity, Redoil, Alaska Wilderness League, the Natural Resources Defense Council, the Northern Alaska Environmental Center, the Pacific Environment and Resources Center, Sierra Club, The Wilderness Society, Ocean Conservancy, Oceana, Greenpeace, and National Audubon Society, which might pose a threat to its offshore operations.

Shell has been an industry presence in Alaska since the 1960s and has conducted offshore drilling in the Bering and Chukchi Seas since the 1970s[1]. Its drilling activities, and associated environmental mishaps (such as an offshore floating rig becoming loose from its tug and running aground on Kodiak Island in 2013, along with other incidents giving rise to federal investigations and fines), have resulted in several lawsuits over the past decades by many of the named defendants above. After the Deepwater Horizon explosion and subsequent release of the equivalent of 4.9 billion barrels of oil over 87 days in the Gulf of Mexico in 2010, Shell filed new spill response plans for its operations in the Beaufort and Chukchi Seas. The Bureau of Ocean and Energy Management opened a public comment period for four months in 2011 and several of the defendant groups submitted comments. The Bureau then allowed Shell to revise the plans twice, and finally approved them in March of 2012.

Within two weeks of receiving the approval, Shell filed this declaratory judgment action, seeking an order from the district court that the Bureau’s decision satisfied the requirements of the Outer Continental Shelf Lands Act[2], the Oil Pollution Act[3], the Endangered Species Act[4], and the Administrative Procedure Act (APA)[5], along with the relevant regulations under the first three statutes. Although it acknowledged that such a preemptive suit would not be appropriate for all governmental permitting actions, Shell argued to the district court that “unique” and “extraordinary” facts present in this case supported the judgment. The unique and extraordinary facts, according to Shell, were; (1) the environmental groups’ several public statements that they would use litigation to attempt to invalidate the plans; (2) the groups’ general public opposition to all offshore drilling in the Arctic seas; and (3) Shell’s plans to commence drilling immediately and for only a few months, so any lawsuit challenging the Bureau’s decision would immediately halt those activities.

The environmental groups moved to dismiss on several bases, including lack of subject matter jurisdiction because Shell’s suit failed to satisfy the “case or controversy” requirement of Article III of the U.S. Constitution. The district court denied the groups’ motion to dismiss, and later granted summary judgment on the merits for Shell, declaring that “the approvals … shall stand.”[6]

On appeal, the Ninth Circuit reversed, holding that the district court lacked jurisdiction to adjudicate Shell’s claims because there was no “case or controversy.” Specifically, the court noted that, despite the past history of litigation, and opposing public viewpoints on the lawfulness of Shell’s offshore drilling activities between Shell and the environmental groups, there was no “adverse legal interest” sufficient to satisfy the Supreme Court’s “case or controversy” test.[7] To determine whether parties have an adverse legal interest, courts must consider the underlying law supporting the declaratory judgment request – in this case, the APA. Under the APA, aggrieved parties can only bring APA actions against a governmental entity, not against private parties.[8] Thus, any “adverse legal interests are held by a federal agency and a person aggrieved by that agency’s actions” and without the relevant federal agency’s participation in the suit, “no case or controversy can exist.”[9] In short, there was no statutory basis, at least under the APA, establishing a case or controversy within the meaning of Article III.

At the end of the decision, the court noted two main reasons supporting its ruling. First, had it concluded that the district court was right, this decision would have paved the way for district courts to enter judgments declaring an agency’s actions unlawful in decisions that do not bind the agency (a non-party). Second, a ruling for Shell would essentially authorize lower courts to adjudicate the lawfulness of an agency’s actions without hearing from the agency regarding its justification for the challenged action. Where the case goes from here is anyone’s guess at this point, as Shell has 90 days to petition the Supreme Court for a writ of certiorari to review the Ninth Circuit’s decision. It’s safe to say, though, that Shell has failed to shield itself from suit over its spill response plan, and on a larger scale, its offshore drilling activities in the Arctic.

Sarah Adams-Schoen, Assistant Professor of Legal Process at Touro College Jacob D. Fuchsberg Law Center and Director of the Institute on Land Use & Sustainable Development Law

Impacts from recent climate-related extremes, such as heat waves, droughts, floods, cyclones, and wildfires, reveal significant vulnerability and exposure of some ecosystems and many human systems to current climate variability (very high confidence). Impacts of such climate-related extremes include alteration of ecosystems, disruption of food production and water supply, damage to infrastructure and settlements, morbidity and mortality, and consequences for mental health and human well-being. For countries at all levels of development, these impacts are consistent with a significant lack of preparedness for current climate variability in some sectors.[1]

In North America, governments are engaging in incremental adaptation assessment and planning, particularly at the municipal level. Some proactive adaptation is occurring to protect longer-term investments in energy and public infrastructure.[2]

These statements from the Working Group II Summary for Policymakers(WGII SPM) in the International Panel on Climate Change’s most recent assessment report (AR5) hint at a failure across all levels of government in the U.S.—specifically, a significant gap between vulnerabilities and preparedness. Although WGII SPM recognizes the greater efforts of U.S. municipal governments, as compared to federal and state governments, U.S. municipalities still lag behind their counterparts throughout the world.

In Climate Change 2014: Impacts, Adaptation, and Vulnerability, IPCC Working Group II states:

Coordinated support from higher levels of governments, the private sector and civil society and horizontal learning through networks of cities and practitioners benefits urban adaptation (medium confidence based onmedium agreement, medium evidence).[1]

Unfortunately, Working Group II (and the other Working Groups) provided little detail as to what it envisioned as “horizontal learning” or a “network of cities” and how they may benefit urban adaptation. Working Group II also omitted this statement from its Summary for Policymakers.

Because I interpret the statement as referring, in part, to self-coordinated collective action among urban communities throughout the world; and because I believe an urban community collaborative has the potential to be a powerful and realistic alternative in mitigating and adapting to climate change, this essay considers what an urban community collaborative could look like and the potential it holds. My hope is that the IPCC continues to increase its recognition of urban centers and the cumulative impact they may have when collaborating to reduce greenhouse gas (GHG) emissions. As part of this, the IPCC should include the statement above or a similar one pertaining to self-coordinated collective action among urban communities in its future reports and, at a minimum, discuss the possibilities and challenges of an urban community collaborative.

On November 12, the Ninth Circuit (Farris, Nelson, Nguyen) issued a decision in Shell Gulf of Mexico Inc. v. Center for Biological Diversity. This case after the Interior Department’s Bureau of Safety and Enforcement approved Shell’s oil response plans in connection with Shell’s exploration and development of oil and gas resources in the Beaufort and Chukchi Seas on Alaska’s Arctic coast. Instead of waiting for environmental groups to sue to challenge the Bureau’s approval, Shell—employing what the Ninth Circuit aptly calls a “novel litigation strategy”—filed suit against environmental organizations, seeking a declaratory judgment validating the Bureau’s approval. The district court denied the environmental groups’ motion to dismiss. The groups appealed, and the Ninth Circuit reversed. The Ninth Circuit held that Shell’s lawsuit failed to present a justiciable case or controversy; Shell “may not file suit solely to determine who would prevail in a hypothetical suit between the environmental groups and the Bureau.”